Covid-19 update: How do Canadian emergency powers work?

Covid-19 update: How do Canadian emergency powers work?

In the midst of the COVID-19 pandemic, all levels of government in Canada have implemented various rules and guidelines applicable to citizens. Though the federal government has not yet declared a state of emergency, provinces including Ontario, Alberta, Saskatchewan, British Columbia, and Newfoundland and Labrador have declared a state of public health emergency in relation to the COVID-19 outbreak. A state of emergency generally thrusts the government into a period of enhanced power and control over law-making, for a temporary period of time.

Similar to Ontario’s Emergency Management and Civil Protection Act, each province has its own legislation applicable to these urgent times. The ultimate goal of protecting the well-being of all citizens often mandates some short term sacrifices, including restricting travel and movements, and temporarily closing down schools, offices, or other (public or private) establishments.

If the provincial-level, and all other efforts are unsuccessful, the federal Emergencies Act may permit the Cabinet to declare a “public welfare emergency” for a period of 90 days. The Emergencies Act is similar to provincial legislation in the types of orders and regulations that are within the scope of governmental authority during an emergency, but applies to grant a much broader power to the federal government. During the 90-day period, the government may pass laws in an attempt to curtail the spread of COVID-19 without going through the ordinary process of parliamentary scrutiny. Regulations enacted under the Emergencies Act may restrict travel, call for evacuation, establish temporary shelters, and regulate the distribution of goods, among other things. Under the Act, those who contravene such regulations may be punishable by fine, imprisonment, or both.

After the SARS outbreak in 2003, the federal government enacted the Quarantine Act to “protect public health” by “prevent[ing] the introduction and spread of communicable diseases.” Unlike the Emergencies Act, the Quarantine Act is always in effect, and provides sweeping powers to the Minster of Health to stop the spread of diseases. Under the Act, the government is permitted to establish a quarantine station “at any place in Canada”, and provides that all persons entering and leaving Canada are required to be screened. So far during the COVID-19 pandemic, the Quarantine Act has been used to implement mandatory airport screenings, and to isolate a group of travelers at an Ontario military base upon return from China.

Provincial legislation, the Emergencies Act, and the Quarantine Act are legitimate tools that the government can use to help promote and enforce the well-being of all Canadians. Of course, any legislation that mandates or restricts certain behaviours runs the risk of infringing on otherwise guaranteed Charter rights. For example, restrictions on mass gatherings may limit “freedom of peaceful assembly” under Section 2(c) of the Charter. Further, closing of borders may place limits on individual mobility rights contained in in Section 6. In some cases, mandatory quarantine conditions may affect the Section 9 “right not to be arbitrarily detained or imprisoned,” and potentially even the Section 7 “right to life, liberty and security of the person.” Where infringement occurs, Section 1 of the Charter dictates that the government would have to demonstrate that the limits imposed are “reasonable”, “prescribed by law”, and “demonstrably justified in a free and democratic society.”

In circumstances of emergency, courts are likely to be deferential to legislative action, but laws still will need to be demonstrably justified based on evidence and the intrusion on liberty must proportionate and minimally impairing. This means that if new evidence emerges that shifts underlying assumptions—if, for example, children are found not to be significant vectors of virus transmission- actions like closing schools will be more difficult for government to justify.

Image by Jason Scragz and used under CC 2.0.

With thanks to intern Natalie Thompson, University of Alberta, for excellent assistance